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From the editorial:

“There is nothing left in playgrounds that would attract the interest of a child over the age of four,” Philip K. Howard, lawyer and author, wrote in the Wall Street Journal in 2008.

Oddly enough, my kids have no problem finding tons of interesting things in playgrounds. They love them, and are now well past four. Of course, my kids aren’t looking to score political points in editorials.

I noted in the article that the swings didn’t have a safe surface. Having acknowledged they weren’t safe, and that a kid got hurt as a result, blaming the lawyers doesn’t really address the problem.

[…] a post at Overlawyered, Walter Olson notes an article that says swings sets have been removed from a playground “in […]

Spoken like a true lawyer, Eric. Unfortunately, there is no such thing as a safe surface. If someone gets hurt falling on it then, as any good lawyer will tell us, by definition it is unsafe. When I grew up in the Bronx in the 1950s the playgrounds had a concrete surface. The swings were made of hard wood and they were attached to the support by large chains. If you got hit by one of those swings you definitely got hurt. The monkey bars were made out of steel and if you slipped you would get hurt. Yet with all of those hazards we somehow managed to survive childhood without suing someone.

Someday, with enough regulations and lawsuits, the world will be 100% safe.

Walter,

I thought I would point you to a relevant article/study on the issue of the increased concern over liability issues associated with public school and public playgrounds and its impact on increasing public health crisis in the US. Here is the article:
http://www.miller-mccune.com/health/public-schools-an-untapped-recreational-resource-17714/

By coincidence I received notice of this report last week when the first report of the action taken by the Cabell County school board came out in our local newspapers. I am a health care lawyer based in West Virginia and so these issues hit close to home for me. Our state and our people are at the top in the category of the most unhealthy in the U.S. For example, West Virginia children have one of the highest (if not the highest) rates of childhood diabetes and the loss of these public locations where children/people can get physical activity will have a negative impact on our efforts to improve the overall health of our population. As discussed in the article, I would like to see legislation proposed to limit liability for these public places – if it really is an issue. As a model here in West Virginia, we could look to the Whitewater Rafting Act that was passed in the 1990s as a way to help promote tourism for some of the best whitewater in the U.S. on the New and Gauley River. The legislation crafted limited liability for the raft guide companies as a long as they meet certain safety requirements. Similar safe harbor legislation could be passed to provide controlled immunity for school, public recreational facilities, etc.

Thanks for your post.
Bob Coffield
Health Care Law Blog & @BobCoffield

Bravo Richard! When I was a kid in NYC, I loved the swingsets with the wooden seats and the chains. I was even clopped in the head once; it raised a bump, but I was back in gear within 5 minutes. Even though the swings were located on concrete, we kids would purposefully propel off the seat to see how far we could fly, and occassionally there was a skinned palm, knee or elbow. So what!

On the slide, I would always go feet first becasue I felt uncomfortable going head first in such a situation.

Under the above circumstances, I would never have held the Parks Department responsible for any injury that I may have sustained.

On the other hand, if the Parks Department installed a swing or monkey bars that collapsed under the weight of the user causing injury, then they should be responsible.

Right after posting the comment above I saw this article issued by the Charleston Gazette today indicating that Cabell County Schools is reversing its decision to remove swing sets from the playgrounds because the removal goes against state school policy that requires swing sets be available for kindergarten programs.

Link to article:
http://wvgazette.com/News/201009030330

Yet with all of those hazards we somehow managed to survive childhood without suing someone.

Yes, most did. And some had broken necks and other horrible injuries.

I can’t think of a single parent that would want their kid to play on monkey bars over concrete. Your mileage, I guess, must vary.

Eric, do you really think that I was recommending that they go back to using concrete? The point of my comment was that despite all of the added “safety” features there are more lawsuits nowadays. Since you read the article you know that the cause of the accident was that the child was trying act like superman. In other words the child was at fault. However, the school had to pay because they didn’t idiot proof the playground. Short of covering each child in bubble wrap, there is no way to prevent a child from injuring himself if he does something really stupid. And when that happens there will always be a lawyer arguing that if the school had only added some more padding then the injury would not have occurred.

Since you read the article you know that the cause of the accident was that the child was trying act like superman. In other words the child was at fault.

Richard: There is no way to tell from the short article if Superman jumped 2 feet or 20. We only know that the school acknowledged the surface was not safe.

There is no law anywhere that says a playground must be idiot-proof. The standard is whether reasonable steps were taken under the circumstances, and the school seems to indicate (albeit in a very short article that leaves both of wanting more info) that they didn’t do what they knew had to be done.

As a Certified Playground Safety Inspector and instructor for the National Recreation and Park Association’s Certified Playground Safety Inspector Course, I will tell you there will never be a 100% safe playground since we as owner/operators and designers of these spaces can ever totally anticipate how these children will use the environment in uninteded ways. There are all types of know safety concerns identified by the American Society for Testing and Materials (ASTM) standard for public play equipment (ASTM F1487-07ae1) and the Consumer Product Safety Commission’s Handbook for Public Playground Safety #325.

Our job or the issue is to eliminate these know safety issues not to take away risk or challenge in a child’s evironment but to provide a well thought out and maintained environment that will allow kids ot be kids without restricting their ability to explore and challenge their individual abilities and to better understand personal accountability for poor choices.

The NRPA has trained over 40,000 participants in their playground safety program in hipes the participants will apply this new knowledge and effectively use the tools now available to them to provide a safe yet challenging play environment for all children.

What I have learned over the past twenty or so years is there are many who have a responsiblity to do just that but they have not taken the time to learn what their responsiblities are and act appropriately. There are still many jurisdictions that continue to stick their heads in the sand and ignor industry standards or “best practices within the industry”. These safety recommendations can do a lot to eliminate some of this perceived liability. Sure I would like to see a lot of this litigation go away but I would also would like to see a requirement that before any entity recieves a permit or grant to build a public playground that they show documentation for having a trained CPSI on their staff who will work to maintain these safe havens for the benefit of all who use them. Without an ongoing commitment to the maintenance of these spaces throughout the life of the playground (which is required in the ASTM F1487 standard) we should not be building it in the first place.

40 years ago, the city of Eureka, CA had a real steam engine in the park, and kids could (and did) climb all over it. There is no way this could happen today, yet I don’t believe anybody ever got hurt on it, and it was a great experience. Sad.

Are there trees on the playground? I sure hope not – a kid could jump or fall out of one.

Hey, maybe the NRPA can train the trees how to grow so they will be safe but challenging.

@Bill – as of 1996 they still had the steam engine and on the third Saturday of every month they run it on the track. Free rides on a Steam train just across the road from the mall.

As the train was running on the day I saw it (third Saturday in July, 1996) there was no climbing on it. I don’t know what happens or what is allowed the rest of the month.

Kimsch, different park and different steam engine. This was at Sequoia Park and Zoo, and it was a full size engine rather than one used in the woods. Across from the mall is the Fort Humboldt park, where the fort used to be.

“There is no law anywhere that says a playground must be idiot-proof. The standard is whether reasonable steps were taken under the circumstances, ”

except of course that any injury lawyer worth his commission on the millions of income from lawsuits will be able to argue that ANY injury under ANY circumstances is conclusive evidence that “reasonable steps” were not taken.

“Are there trees on the playground? I sure hope not – a kid could jump or fall out of one. ”

Worse, something could fall out of it and injure a kid. Can’t have that, so have to cut down all trees.

Western society has become so risk averse we’re stupified and incapable of doing anything.
We’re basking in our past successes, telling ourselves we’ve achieved so much, while at the same time reducing ourselves to nothing.
That is the way of the dodo, the path to extinction, and we’re willingly embarking on it under the banner of “health and safety”.

Ken Kustka’s comment was very interesting and I thank him for it.

The problem is that adherence to standards should protect against lawsuits. Something went wrong. And I suspect that the costs associated with the standards are not justified by the benefits. Look at the horrendous costs to deal with lead paint when the risks are much more imagined than real. Yes, too much lead is harmful. So is too much water.

I professionally install playgrounds for a living and I see the satisfaction playgrounds bring to the children and how it is an integral part of exercising and socializing. I wish the attorneys would not get involved.